Proposed act to bring oversight, accountability to CBSA

Toronto immigration lawyer Robin Seligman says she supports independent oversight of Canada Border Services Agency (CBSA) and wonders if a new private member’s bill will go far enough to bring transparency and accountability to the agency.

"My hope is that this legislation goes far enough,” says Seligman, principal ofSeligman Professional Corporation. “I’m in favour of independent oversight of CBSA and this bill has to have some teeth in order to be effective. There has to be accountability, remedies and there has to be proper procedures and processes followed.”

Bill S-205 — An Act to amend the Canada Border Services Agency Act (Inspector General of the Canada Border Services Agency) — had its frst reading in December 2015, and its second reading and referral to committee in April 2016.

Sponsored by Senator Wilfred Moore, the bill is intended to bring accountability and balance to CBSA rather than reducing its powers.

The agency was created following the attacks on the World Trade Center on Sept. 11, 2001, and in his introduction to Senate on April 14, Moore noted there have been no changes made to the oversight of the national security establishment to date.

“However, it also possesses powers over Canadian citizens and individuals from abroad that can lend themselves to abuse,” he continued. “CBSA officers have powers of arrest, detention, search and seizure. At our borders, these officers have more power than police officers.”

Moore pointed to four detention facilities run by the CBSA where there have been 14 reported deaths since 2003 as well as the agency’s intelligence program that collects information by means of covert surveillance.

“Access-to-information requests reveal that CBSA approached a telecommunications company over 18,000 times in 2012, looking for information of customers. Of those requests, only 52 involved a warrant,” he said.

The first major component of the bill is the appointment of an inspector general with the authority to report on and make recommendations concerning the agency's activities and the capacity to receive and investigate complaints. This role would have the rank and powers of a deputy head of department and have the power to hire staff on a full-time basis and to engage experts on a temporary basis.

The mandate of the inspector under the legislation is: a) to monitor and report on the activities of CBSA and carrying out its mandate, which may include making observations and recommendations concerning the procedures and performance of the agency in relation to any of its activities; and b) to carry out investigations in relation to complaints made to the inspector general.

The bill also provides guidelines for investigations conducted by the office of the inspector general and states that before commencing an investigation, the inspector shall inform the Minister of Public Safety and the president of CBSA of the intention to investigate and the nature of the complaint.

The second major aspect of the bill is a reporting component. Under this legislation, the inspector general would submit an annual report to the Minister of Public Safety of his or her activities during that year.

The final component of the bill concerns remedies. According to the legislation, anyone who has made a complaint to the inspector general may apply to the Federal Court for a remedy within 60 days of the date on which the investigation results are reported, or the date on which the complainant has been informed that the inspector general has refused to investigate the complaint.

Seligman tells AdvocateDaily.com that CBSA has broad powers and doesn’t hesitate to use them. As such, it’s crucial the inspector general is an independent appointment.

"CBSA is a very enforcement-oriented group,” she says. “They are implementing immigration policy with a very heavy-handed enforcement approach. While that may have gone hand in hand with the previous federal government, this has not been the approach of our current Liberal government. Their approach is one of fairness and acting appropriately.

“I think there have been many years of allowing the CBSA to proceed without oversight,” Seligman adds. “I think it's clear amendments are needed and it's going to take a real change in mentality to reel them in."